0520110163
02-08-2011
Hattie D. Strong, Complainant, v. Eric H. Holder, Jr., Attorney General, Department of Justice (Federal Bureau of Prisons), Agency.
Hattie D. Strong,
Complainant,
v.
Eric H. Holder, Jr.,
Attorney General,
Department of Justice
(Federal Bureau of Prisons),
Agency.
Request No. 0520110163
Appeal No. 0120102746
Agency Nos. P-2005-0277, P-2007-0056
DENIAL
Complainant timely requested reconsideration of the decision in Hattie
D. Strong v. Department of Justice, EEOC Appeal No. 0120102746 (October
14, 2010). EEOC Regulations provide that the Commission may, in its
discretion, grant a request to reconsider any previous Commission decision
where the requesting party demonstrates that: (1) the appellate decision
involved a clearly erroneous interpretation of material fact or law; or
(2) the appellate decision will have a substantial impact on the policies,
practices, or operations of the agency. See 29 C.F.R. � 1614.405(b).
ISSUE PRESENTED
The issue presented is whether Complainant met the criteria for
reconsideration by demonstrating that the appellate decision: (1)
involved a clearly erroneous interpretation of material fact or law;
or (2) will have a substantial impact on the policies, practices, or
operations of the Agency.
BACKGROUND
In the underlying case, Complainant alleged that the Agency discriminated
against her on the bases of race (African-American), sex (female), age
(51), parental status, and reprisal for prior protected EEO activity when:
(1) for the April 1, 2006 to March 31, 2007 rating period, she received
an unfavorable annual performance evaluation; (2) for the April 1,
2005 to March 31, 2006 rating period, management did not issue her an
annual performance evaluation; (3) in 2006, she did not receive any step
increases; (4) in July and August 2006, the acting Unit Manager subjected
her to harassment in the form of unwarranted criticism and unwarranted
disciplinary charges; (5) on October 11, 2006, she was subjected to
offensive remarks made by management when the Unit Secretary did not
immediately forward her daughter's phone call to her; and (6) for the
April 1, 2005 to March 31, 2006 rating period, her annual performance
evaluation was delayed, thus preventing her from applying for the position
of Unit Manager.
The Commission affirmed the Agency's final decision, which determined
that Complainant failed to prove that the Agency subjected her to
discrimination as alleged. First, the Commission found that Complainant
failed to establish a prima facie case of discrimination on the basis
of reprisal because Complainant could not establish a nexus between her
prior protected activity in 20041 and the adverse treatment in 2006.
Next, the Commission found that Complainant failed to establish a prima
facie case of disparate treatment on the bases of race, sex, and age
because Complainant did not identify similarly situated individuals
outside her protected class that were treated differently. Finally,
the Commission found that Complainant failed to establish a claim of
harassment because she did not show that the alleged harassment was
based on her race, sex, or age, or was sufficiently severe or pervasive
to create a hostile work environment.
ARGUMENTS ON RECONSIDERATION
In her request for reconsideration, Complainant argued that a nexus
was established "[d]ue to reprisal because of known EEO Activity
by management."2 In support of her argument, Complainant asserted
that she never received another step increase despite her work ethic,
management constantly harassed her, management gave her biased performance
evaluations and she could never receive a rating higher than "exceeds,"
management discriminated against another Correctional Officer until she
retired around 2008, and management's statement that other performance
evaluations also were late was false.
The Agency did not submit a statement in opposition to Complainant's
request.
ANALYSIS AND FINDINGS
Upon review, we find that Complainant's request does not establish that
the appellate decision involved a clearly erroneous interpretation
of material fact or law, or that the appellate decision will have a
substantial impact on the policies, practices, or operations of the
Agency. Complainant is reminded that a "request for reconsideration is
not a second appeal to the Commission." Equal Employment Opportunity
Management Directive for 29 C.F.R. Part 1614 (EEO MD-110), Ch. 9,
� VII.A. (Nov. 9, 1999). We emphasize that the appellate decision
found, in relevant part, that Complainant failed to establish a prima
facie case of reprisal discrimination because there was no nexus between
her prior protected activity in 2004 and the adverse treatment in 2006.
Therefore, Complainant must demonstrate in her request for reconsideration
that the appellate decision clearly erred in that respect. We find that
Complainant's arguments on reconsideration failed to make such a showing.
Although Complainant argued that a nexus was established "[d]ue to
reprisal because of known EEO Activity by management" and described
actions by management she believed were evidence of reprisal, we find
that Complainant failed to show that the appellate decision clearly
erred in finding that there was an insufficient temporal proximity to
establish a nexus between her prior protected activity and the instant
adverse treatment.
CONCLUSION
After reconsidering the previous decision and the entire record, the
Commission finds that the request fails to meet the criteria of 29
C.F.R. � 1614.405(b), and it is the decision of the Commission to deny
the request. The decision in EEOC Appeal No. 0120102746 remains the
Commission's decision. There is no further right of administrative
appeal on the decision of the Commission on this request.
COMPLAINANT'S RIGHT TO FILE A CIVIL ACTION (P0610)
This decision of the Commission is final, and there is no further right
of administrative appeal from the Commission's decision. You have the
right to file a civil action in an appropriate United States District
Court within ninety (90) calendar days from the date that you receive
this decision. If you file a civil action, you must name as the defendant
in the complaint the person who is the official Agency head or department
head, identifying that person by his or her full name and official title.
Failure to do so may result in the dismissal of your case in court.
"Agency" or "department" means the national organization, and not the
local office, facility or department in which you work.
RIGHT TO REQUEST COUNSEL (Z0610)
If you decide to file a civil action, and if you do not have or cannot
afford the services of an attorney, you may request from the Court that
the Court appoint an attorney to represent you and that the Court also
permit you to file the action without payment of fees, costs, or other
security. See Title VII of the Civil Rights Act of 1964, as amended,
42 U.S.C. � 2000e et seq.; the Rehabilitation Act of 1973, as amended,
29 U.S.C. �� 791, 794(c). The grant or denial of the request is within
the sole discretion of the Court. Filing a request for an attorney with
the Court does not extend your time in which to file a civil action.
Both the request and the civil action must be filed within the time
limits as stated in the paragraph above ("Right to File A Civil Action").
FOR THE COMMISSION:
______________________________
Carlton M. Hadden, Director
Office of Federal Operations
____2/8/11______________
Date
1 In Strong v. Dep't of Justice, EEOC Request No. 05A50916 (June 23,
2005), the Commission denied Complainant's request for reconsideration
of the decision in Strong v. Dep't of Justice, EEOC Appeal No. 01A52061
(May 11, 2005).
2 Complainant did not address the appellate decision's determination
that she failed to establish a prima facie case of disparate treatment
on the bases of race, sex, and age, or that she failed to establish a
claim of harassment.
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0520110163
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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